1
EXHIBIT 4.3
================================================================================
GREYHOUND LINES, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
$150,000,000
11 1/2 % Series A Senior Notes due 2007
REGISTRATION RIGHTS AGREEMENT
Dated as of April 16, 1997
BEAR, XXXXXXX & CO. INC.
================================================================================
2
This Registration Rights Agreement (this "Agreement") is made and
entered into as of April 16, 1997 by and among Greyhound Lines, Inc., a
Delaware corporation (the "Company"), the guarantors listed on the signature
pages hereto ( each a "Guarantor" and, collectively, the "Guarantors"), and
Bear, Xxxxxxx & Co. Inc. (the "Initial Purchaser"), who has agreed to purchase
$150,000,000 aggregate principal amount of the Company's 11 1/2% Series A
Senior Notes due 2007 (the "Series A Notes") pursuant to the Purchase Agreement
(as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
April 11, 1997 (the "Purchase Agreement"), by and among the Company, the
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: The Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of Series B Notes in the same
aggregate principal amount as the aggregate principal amount of Series A Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of
the Series B Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Notes the
opportunity to exchange all such outstanding Transfer Restricted Notes held by
such Holders for Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Notes tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
3
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Series A Notes (i) to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, (ii) to certain
institutional "accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Act ("Accredited
Institutions") and (iii) outside the United States to certain non-U.S. Persons
meeting the requirements of Rule 904 under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of April 16, 1997, among the
Company, PNC Bank, National Association, as trustee (the "Trustee"), and the
Guarantors, pursuant to which the Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
Interest Payment Date: As defined in the Indenture and the
Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement,
as amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.
Initial Purchaser: As defined in the preamble hereto.
Record Holder: With respect to any Damages Payment Date relating
to Notes, each Person who is a Holder of Notes on the record date with respect
to the Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Series B Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Notes pursuant
to the Shelf Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.
Series B Notes: The Company's 11 1/2% Series B Senior Notes due
2007 to be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
2
4
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Notes: Each Series A Note until (i) the date
on which such Series A Note has been exchanged by a person other than a Broker-
Dealer for a Series B Note in the Exchange Offer, (ii) following the exchange
by a Broker-Dealer in the Exchange Offer of a Series A Note for a Series B
Note, the date on which such Series B Note is sold to a purchaser who receives
from such Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Series A Note has been effectively registered under the Act
and disposed of in accordance with the Shelf Registration Statement or (iv) the
date on which such Series A Note is distributed to the public pursuant to Rule
144 under the Act or may be distributed to the public pursuant to Rule 144(k)
under the Act.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Notes. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Notes.
(b) Holders of Transfer Restricted Notes. A Person is deemed
to be a holder of Transfer Restricted Notes (each, a "Holder") whenever such
Person owns Transfer Restricted Notes of record.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with), the Company and the Guarantors shall (i)
cause to be filed with the Commission on or before the 45th day after the
Closing Date, a Registration Statement under the Act relating to the Series B
Notes and the Exchange Offer, (ii) use their reasonable best efforts to cause
such Registration Statement to become effective on or before the 120th day
after the Closing Date, (iii) in connection with the foregoing, file (A) all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings in connection
with the registration and qualification of the Series B Notes to be made under
the Blue Sky laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Transfer Restricted Notes and to permit resales of Notes held
by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the
3
5
minimum period required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided, however, that in no event shall such
period be less than 20 business days. The Company and the Guarantors shall
cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Notes shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors shall
use their reasonable best efforts to cause the Exchange Offer to be Consummated
on the earliest practicable date after the Exchange Offer Registration
Statement has become effective on or before the 30th business day thereafter.
(c) The Company shall and the Guarantors indicate in a "Plan
of Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker-Dealer who holds Series A Notes
that are Transfer Restricted Notes and that were acquired for its own account
as a result of market-making activities or other trading activities (other than
Transfer Restricted Notes acquired directly from the Company) may exchange such
Series A Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Series B Notes received by such Broker-
Dealer in the Exchange Offer, which prospectus delivery requirement may be
satisfied by the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company and the Guarantors shall use their reasonable best
efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for resales
of Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of one year from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company and the Guarantors shall provide sufficient copies of
the latest version of such Prospectus to Broker-Dealers promptly upon request
at any time during such one-year period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors
are not required to file an Exchange Offer Registration Statement or to
consummate the Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) or (ii) any Holder of Transfer Restricted
Notes shall notify the Company prior to the 20th day following the Consummation
of the Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the Series B Notes acquired by it in the Exchange Offer
to the public without delivering a prospectus and that the Prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder, then the Company and the Guarantors shall use
their reasonable best efforts to:
4
6
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement") on or prior to the earliest to occur of (1) the
45th day after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement and (2) the
45th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Notes as contemplated by clause (ii) above
(such earliest date being the "Shelf Filing Deadline"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Notes the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared
effective by the Commission on or before the 75th day after the Shelf
Filing Deadline.
The Company and the Guarantors shall use their reasonable best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Notes entitled to the benefit of this Section
4(a), and to ensure that it conforms with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years following the Closing
Date or, if earlier, until the Shelf Registration Statement terminates when all
Transfer Restricted Securities covered by such Shelf Registration Statement
have been sold.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted Notes
may include any of its Transfer Restricted Notes in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Notes shall be
entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified
for such filing in this Agreement, (ii) any of such Registration Statements has
not been declared effective by the Commission on or prior to the date specified
for such effectiveness in this Agreement (the "Effectiveness Target Date"),
whether or not the Company and the Guarantors have breached any obligations to
use their reasonable best efforts, to cause any such Registration Statement to
be declared effective, (iii) the Exchange Offer has not been Consummated within
30 business days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses
5
7
(i) through (iv), a "Registration Default"), the Company and the Guarantors
hereby jointly and severally agree to pay liquidated damages to each Holder of
Transfer Restricted Notes with respect to the first 90-day period immediately
following the occurrence of such Registration Default in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted Notes held by
such Holder for each week or portion thereof that the Registration Default
continues. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Notes with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.35
per week per $1,000 principal amount of Transfer Restricted Notes. All accrued
liquidated damages shall be paid to Record Holders by the Company by wire
transfer of immediately available funds or by federal funds check on each
Damages Payment Date, as provided in the Indenture. Following the cure of all
Registration Defaults relating to any particular Transfer Restricted Notes, the
accrual of liquidated damages with respect to such Transfer Restricted Notes
will cease.
All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Transfer
Restricted Note at the time such security ceases to be a Transfer Restricted
Note shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) below, shall use their reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted Notes being sold
in accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Company and the Guarantors hereby agree
to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Series A Notes. The Company and the Guarantors
hereby agree to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company and the
Guarantors hereby agree, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable) by the Commission staff of such
submission.
(ii) As a condition to its participation in the Exchange
Offer pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Notes shall furnish, upon the request of the Company, prior
to the Consummation thereof, a written representation to the Company and
the Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company or any Guarantor, (B) it
is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the Exchange Offer
and (C) it is acquiring the Series B Notes in its ordinary course of
business. In addition, all
6
8
such Holders of Transfer Restricted Notes shall otherwise cooperate in
the Company's preparations for the Exchange Offer. The Initial
Purchaser, for itself and on behalf of the Holders hereby acknowledges
and agrees, and each Holder by its purchase of Transfer Restricted
Securities shall be deemed to have acknowledged and agreed, that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated
in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in
the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the registration
and prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K if the resales are of Series B
Notes obtained by such Holder in exchange for Series A Notes acquired by
such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall provide a
supplemental letter to the Commission (A) stating that the Company and
the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above and (B) including a representation
that neither the Company nor any Guarantor has entered into any
arrangement or understanding with any Person to distribute the Series B
Notes to be received in the Exchange Offer and that, to the best of the
Company's information and belief, each Holder participating in the
Exchange Offer is acquiring the Series B Notes in its ordinary course of
business and has no arrangement or understanding with any Person to
participate in the distribution of the Series B Notes received in the
Exchange Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Guarantors shall comply with
all the provisions of Section 6(c) below and shall use their reasonable best
efforts to effect such registration to permit the sale of the Transfer
Restricted Notes being sold in accordance with the intended method or methods
of distribution thereof and, pursuant thereto, the Company and the Guarantors
will prepare and file with the Commission in accordance with Section 4(a)
hereof a Shelf Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Notes in accordance with the intended method or methods
of distribution thereof.
(c) General Provisions. In connection with any Registration
Statement and any Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Notes (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company and the Guarantors shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Act or any
regulation thereunder, financial statements of the Guarantors) for the
period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or
7
9
omission or (B) not to be effective and usable for the resale of
Transfer Restricted Notes during the period required by this Agreement,
the Company and the Guarantors shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use their reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments
and post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted Notes
covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Act, and
to comply fully with the applicable provisions of Rules 424 and 430A
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling
Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the
same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Notes for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes,
(D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
document incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Registration Statement or
the Prospectus in order to make the statements therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Notes under state securities or Blue Sky laws, the Company
and the Guarantors shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders and each of
the underwriter(s) (all of whom shall be required to acknowledge the
confidentiality of the information therein, if requested by the Company
prior to being furnished the same), if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (but excluding any documents
incorporated by reference as a result of the Company's periodic
reporting requirements under the Exchange Act), and neither the Company
nor any Guarantors shall file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (excluding all such documents incorporated by
reference as a result of the Company's periodic reporting requirements
under the Exchange Act) to which a selling Holder of Transfer Restricted
Notes
8
10
covered by such Registration Statement or the underwriter(s), if any,
shall reasonably object within five business days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly following the filing of any document that is
to be incorporated by reference into a Registration Statement or
Prospectus, provide copies of such document to the selling Holders and
to the underwriter(s), if any, make the Company's representatives
available for discussion of such document and other customary due
diligence matters, and include such information in such document prior
to the filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by
the selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), all
financial and other records, pertinent corporate documents and
properties of the Company and the Guarantors and cause the Company's and
the Guarantors' officers, directors and employees to supply all
information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Notes, information with respect
to the principal amount of Transfer Restricted Notes being sold to such
underwriter(s), the purchase price being paid therefor and any other
terms of the offering of the Transfer Restricted Notes to be sold in
such offering; and make all required filings of such Prospectus
supplement or post-effective amendment as soon as practicable after the
Company is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company and the
Guarantors hereby consent to the use of the Prospectus and any amendment
or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Notes covered by the Prospectus or any amendment
or supplement thereto; provided that such use of the Prospectus and any
amendment or supplement thereto and such offering and sale conforms to
the Plan of Distribution set forth in the Prospectus and complies with
the terms of this Agreement and all applicable laws and regulations
thereunder;
(x) in the event of an Underwritten Registration, enter
into such customary agreements (including an underwriting agreement),
and make such customary representations and warranties,
9
11
and take all such other customary actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer
Restricted Notes pursuant to any Shelf Registration Statement
contemplated by this Agreement, all to such extent as may be requested
by any Holder of Transfer Restricted Notes or underwriter in connection
with any sale or resale pursuant to any Shelf Registration Statement
contemplated by this Agreement; and whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, the Company and the Guarantors shall:
(A) Except in the case of an Underwritten Registration,
furnish to each selling Holder upon the effectiveness of the
Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness
of the Shelf Registration Statement, signed on behalf of
the Company by two senior officers, one of whom must be
its Chief Financial Officer, confirming, as of such date,
the matters set forth in paragraphs (a), (c) and (d) of
Section 8 of the Purchase Agreement with respect to the
transactions contemplated by the Shelf Registration
Statement;
(2) an opinion, dated the date of effectiveness of
the Shelf Registration Statement, of counsel for the
Company and the Guarantors, covering the matters set forth
in Exhibits A and B of the Purchase Agreement with respect
to the transactions contemplated by the Shelf Registration
Statement, and in any event including a statement to the
effect that such counsel has participated in conferences
with officers and other representatives of the Company and
the Guarantors and representatives of the independent
public accountants for the Company and the Guarantors in
connection with the preparation of such Registration
Statement and the related Prospectus and have considered
the matters required to be stated therein and the
statements contained therein, although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to a large extent upon facts provided to such
counsel by officers and other representatives of the
Company and without independent check or verification), no
facts came to such counsel's attention that caused such
counsel to believe that the Registration Statement, at the
time such Registration Statement or any post-effective
amendment thereto became effective, contained an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of
its date contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy,
completeness or fairness of the financial statements,
notes and schedules and other financial data included in
any Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated as of the
date of effectiveness of the Shelf Registration Statement,
from the Company's independent accountants if such comfort
letter shall be issuable to the selling Holders in
accordance with the relevant accounting industry
pronouncements, in the customary form and covering matters
of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
10
12
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 8(h) of the
Purchase Agreement, without exception; and
(B) deliver such other documents and certificates as may
be reasonably requested by such parties to evidence compliance
with clause (A) above and with any customary conditions contained
in the underwriting agreement or other agreement entered into by
the Company and the Guarantors pursuant to this clause (x), if
any.
If at any time the representations and warranties of the Company
and the Guarantors contemplated in clause (A)(1) above cease to be true
and correct, the Company shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by such Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Notes, cooperate with the selling Holders, the underwriter(s), if any,
and their respective counsel in connection with the registration and
qualification of the Transfer Restricted Notes under the securities or
Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s) may request and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Notes covered by the Shelf
Registration Statement; provided, however, that neither the Company nor
the Guarantors shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation,
other than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Series A
Notes covered by the Shelf Registration Statement, Series B Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Series A Notes being sold by such Holder; such Series B Notes
to be registered in the name of the purchaser(s) of such Notes, as the
case may be; in return, the Series A Notes held by such Holder shall be
surrendered to the Company for cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Notes to be
sold and not bearing any restrictive legends; and enable such Transfer
Restricted Notes to be in such denominations and registered in such
names as the Holders or the underwriter(s), if any, may reasonably
request at least two business days prior to any sale of Transfer
Restricted Notes made by such underwriter(s);
(xiv) if any fact or event contemplated by clause
(c)(iii)(D) above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Notes, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(xv) provide a CUSIP number for all Transfer Restricted
Notes not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates
for the Transfer Restricted Notes which are in a form eligible for
deposit with the Depository Trust Company;
11
13
(xvi) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD;
(xvii) otherwise use their reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders, as soon as
practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A)
commencing at the end of any fiscal quarter in which Transfer Restricted
Notes are sold to underwriters in a firm or best efforts Underwritten
Offering or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement;
(xviii) cause the Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with
the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use their
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner;
(xix) cause all Transfer Restricted Notes covered by the
Registration Statement to be listed on each securities exchange on which
the Notes are then listed if requested by the Holders of a majority in
aggregate principal amount of Series A Notes or the managing
underwriter(s), if any; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Note
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will keep
such notice confidential and forthwith discontinue disposition of Transfer
Restricted Notes pursuant to the applicable Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xiv) hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus. If so directed by the Company,
each Holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Notes that was current at the time
of receipt of such notice. In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xiv) hereof or shall have received the Advice.
12
14
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Guarantors'
performance of or compliance with this Agreement will be borne by the Company
and the Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses (including filings made by any Initial Purchaser or Holder with
the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the Series B Notes to be issued
in the Exchange Offer and printing of Prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company and the Guarantors and, subject to Section 7(b) below, the Holders of
Transfer Restricted Notes; (v) all application and filing fees in connection
with listing Notes on a national securities exchange or automated quotation
system, if any; and (vi) all fees and disbursements of independent certified
public accountants of the Company and the Guarantors (including the expenses of
any special audit and comfort letters required by or incident to such
performance).
The Company and the Guarantors will, in any event, bear their
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or any Guarantor. The Company shall not be
responsible for any other expenses or costs, including but not limited to
commissions, fees and discounts of underwriters, brokers, dealers and agents.
(b) In connection with any Registration Statement required by
this Agreement (excluding the Exchange Offer Registration Statement), the
Company and the Guarantors will reimburse the Initial Purchaser and the Holders
of Transfer Restricted Notes being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Xxxxxx & Xxxxxxx or such other counsel as may be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Notes for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder, (ii) each person, if any,
who controls any Holder within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clauses (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Holder"), to the fullest extent
lawful, from and against any and all losses, liabilities, claims, damages and
expenses whatsoever (including but not limited to reasonable attorneys' fees
and any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any investigation or litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus, or in any supplement thereto or
13
15
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
and the Guarantors will not be liable in any such case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the any of
the Holders expressly for use therein; and provided further, however, that the
foregoing indemnity shall not inure to the benefit of any Indemnified Holder
from whom the person asserting such loss, liability, claim, damage or expense
(A) received a Prospectus or an amendment or supplement thereto in violation of
the last paragraph of Section 6 above if such violation caused such loss,
liability, claim, damage or expense or (B) purchased any Transfer Restricted
Security if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Indemnified Holder to such person at or
prior to the written confirmation of the sale of such Transfer Restricted
Security to such person and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, liability, claim damage,
or expense. This indemnity agreement will be in addition to any liability
which the Company and the Guarantors may otherwise have, including under this
Agreement.
(b) Each Holder of Transfer Restricted Notes agrees, severally
and not jointly, to indemnify and hold harmless the Company, each of the
Guarantors and each person, if any, who controls the Company or any Guarantor
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act and each of their respective officers, directors, employers, partners,
representatives and agents to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only
with respect to information relating to such Holder furnished in writing by
such Holder for use in any Registration Statement, or in any amendment thereof
or supplement thereto; provided, however, that in no case shall any selling
Holder be liable or responsible for any amount in excess of proceeds received
by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. This indemnity will be in addition to any
liability which the Holders may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 6 or otherwise except to the
extent that it has been prejudiced in any material respect by such failure).
In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume and control the
defense thereof with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to take
charge of the defense of such action within a reasonable time after notice of
commencement of the action, or (iii) such indemnified party or parties shall
have been advised by counsel that representation of such indemnified
14
16
party and any indemnifying parties by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) because of actual or
potential interests between them (in which case the indemnifying party or
parties shall not have the right to direct the defense of such action on behalf
of the indemnified party or parties), in any of which events such fees and
expenses of counsel shall be borne by the indemnifying parties; provided,
however, that the indemnifying party under subsection (a) or (b) above shall
only be liable for the legal expenses of one counsel (in addition to any local
counsel) for all indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its prior written consent;
provided that such consent was not unreasonably withheld.
SECTION 9. CONTRIBUTION
In order to provide for contribution in circumstances in which
the indemnification provided for in Section 8 is for any reason held to be
unenforceable against the Company and the Guarantors or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Guarantors, on the
one hand, and the Holders on the other hand, shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company and the Guarantors, any contribution received by the Company and the
Guarantors from persons, other than a Holder, who may also be liable for
contribution, including persons who control the Company and the Guarantors
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) to which the Company, the Guarantors or any Holder may be subject, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on one hand, and each Holder, on the other hand,
from the offering of the Series A Notes or, if such allocation is not permitted
by applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 8, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company and the Guarantors, on one
hand, and the Holders on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on one hand, and the
Holders, on the other hand, shall be deemed to be in the same proportion as (i)
the total proceeds from the offering of Series A Notes (net of discounts but
before deducting expenses) received by the Company and the Guarantors and (ii)
the discounts and commissions received by the Initial Purchaser, respectively,
in each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company and the Guarantors, on one hand,
and of each Holder, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Guarantors or such Holder
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantors and each Holder of Transfer Restricted Notes agree that it would not
be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 9, (i) in no case shall any
Holder be required to contribute any amount in excess of the amount by which
the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such obligation exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of any untrue
15
17
or alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 9, (A) each
person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (B) the
respective officers, directors, partners, employees, representatives and agents
of such Holder or any controlling person shall have the same rights to
contribution as the Initial Purchaser, and each person, if any, who controls
the Company or any Guarantor within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
the Company and the Guarantors, subject in each case to clauses (i) and (ii) of
this Section 9. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties under this Section 9, notify such party or parties
from whom contribution may be sought, but the failure to so notify such party
or parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 9 or
otherwise. No party shall be liable for contribution with respect to any
action or claim settled without its prior written consent; provided that such
written consent was not unreasonably withheld.
SECTION 10. RULE 144A
The Company and the Guarantors hereby agree with each Holder, for
so long as any Transfer Restricted Notes remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Notes in connection
with any sale thereof and any prospective purchaser of such Transfer Restricted
Notes from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Notes pursuant to Rule 144A.
SECTION 11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
SECTION 12. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Notes covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Notes in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Notes included in such
offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
16
18
SECTION 13. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that
monetary damages (including the liquidated damages contemplated hereby) would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agree to waive the defense in
any action for specific performance that a remedy at law would be adequate,
provided, that the Liquidated Damages contemplated hereby shall be the
exclusive remedy for any such breach of Section 3 or 4 of this agreement.
(b) No Inconsistent Agreements. The Company and the
Guarantors shall not, on or after the date of this Agreement, enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's or any of the Guarantor's securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Guarantors shall not take any action with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Notes. Notwithstanding the foregoing,
a waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Notes being tendered or
registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, first-
class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or any Guarantor:
Greyhound Lines, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
17
19
With a copy to:
Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, the successors and assigns of subsequent Holders of Transfer
Restricted Notes; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted Notes from
such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
18
20
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
GREYHOUND LINES, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
ATLANTIC GREYHOUND LINES OF VIRGINIA, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
EAGLE BUS MANUFACTURING, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
and Treasurer
FCA INSURANCE LIMITED
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
GLI HOLDING COMPANY
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
and Treasurer
19
21
GREYHOUND DE MEXICO S.A. DE C.V.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Treasurer
GRUPO CENTRO, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
and Treasurer
LOS BUENOS LEASING CO., INC.
By: /s/ XXXXX X. XXXXXXX
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer and
General Manager
SISTEMA INTERNACIONAL DE TRANSPORTE DE AUTOBUSES, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
and Treasurer
T & V HOLDING COMPANY
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
and Treasurer
20
22
TEXAS, NEW MEXICO & OKLAHOMA COACHES, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
T.N.M. & O. TOURS, INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
VERMONT TRANSIT CO., INC.
By: /s/ XXXXXX X. XXXXX
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
BEAR, XXXXXXX & CO. INC.
By: /s/ XXXXX X. XXXX
------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
21
